Plant v. Donaldson, 39 App. D.C. 162

Plant v. Donaldson

39 App. D.C. 162 | D.C. Cir. | 1912

Mr. Chief Justice Shepard

delivered the opinion of the Court:

A specific legacy is the bequest of a particular thing, or a specified part of a testator’s property distinguished from all others of the same kind. If the will indicates not the gift of the specified part of the estate, but its designation only, as a certain interest or fund from which the bequest shall be primarily paid or satisfied, it is a demonstrative legacy. Douglass v. Douglass, 13 App. D. C. 21-26; Kenaday v. Sinnott, 179 U. S. 606-619, 45 L. ed. 339, 346, 21 Sup. Ct. Rep. 233; Gelbach v. Shively, 67 Md. 498—501, 10 Atl. 247.

The same authorities maintain the following as settled rules of construction: Whether a legacy is to be treated as demonstrative, or one dependent exclusively upon a particular estate or fund for payment, is a question to be determined according to what may have been the general intention of the testator expressed in his will; and that a legacy will not be construed to be specific unless the intention to make it such clearly appears.

As suggested in Douglass v. Douglass, supra, the difficulty is not in the matter of definitions or rules of construction, but in their application to the facts of a particular case. The language of a will construed in one case is rarely the same as that of another, for which reason the decision in one seldom furnished a certain rule for the direct control of another. In Kenaday v. Sinnott, supra, strongly relied on by the appellants *166as controlling the decision of this, the language of the will under construction is essentially different from that used in this will.

We may not conjecture what might or should have been in the mind of the testatrix as regards the legatees named in item 2 because of her near relation to one of them, but must look for her intention to the language in which she has undertaken to express it. We find, nothing in that language from which we can infer an intention that the legatees shall be paid certain sums at all events, with the designation merely of the proceeds of the land as a special fund primarily charged with such payments. The plainly expressed intention is that the real estate, devised in trust,- to the executor for the particular purpose, shall be sold by him, and the proceeds of such sale divided by him in the manner provided. Had the land passed to the executor, and the proceeds proved insufficient to pay the legacies in full, they could not call upon the residuary estate to make up the deficiency, as would be their right if their legacies were demonstrative, and not specific. Had the testatrix devised the real estate directly to the persons designated to receive the proceeds, as in item 1 she bequeathed her household furniture and clothing to the persons named thereafter as residuary legatees, it could not be denied that it would be a specific devise, failing with the subsequent sale of the real estate by the testatrix. That the testatrix, not intending that the legatees named should have the whole of the real estate, but specified portions of its proceeds only, made the devise to the executor in trust,-—for such is the legal effect of the devise notwithstanding the failure to expressly declare him a trustee,—with direction to sell the same and pay a part of the proceeds to the beneficiaries named, does not change the situation of the legatees for the better. Kaiser v. Brandenburg, 16 App. D. C. 310-316; King v. Sheffey, 8 Leigh, 614—619; Boston Safe Deposit & T. Co. v. Plummer, 142 Mass. 257—260, 8 N. E. 51 ; Georgia Infirmary v. Jones, 37 Fed. 750—753; Newbold v. Roadknight, 1 Russ & M. 677, Tamlyn, 492; Page v. Leapingwell, 18 Ves. Jr. 463, 11 Revised Rep. 234. The case of Fowler v. Willoughby, 2 *167Sim. & Stu. 354, 25 Revised Rep. 219, relied on by the appellants, is not in point. In that case it was held that it was the intention that the legacy should be paid at all events and was a charge merely upon the proceeds of land that had been contracted for by the testator, the contract not being enforceable because of the failure of the contracting vendor’s title to the land. The language of the will was quite different from this. The following cases are analogous: Savile v. Blacket, 1 P. Wms. 778; Colville v. Middleton, 3 Beav. 570. In Connecticut Trust & S. D. Co. v. Chase, 75 Conn. 683, 55 Atl. 171, it was held that the title to the land out of the proceeds of which legacies were to be paid remained in the testatrix. Miller v. Malone, 109 Ky. 133, 95 Am. St. Rep. 338, 58 S. W. 108, turned upon the construction of a statute which changed the rule of the common law in important particulars.

The hardship of the appellants was worked by the testatrix’s own act, and not by the decree construing the will. The decree will be affirmed; each party paying his own costs. Affirmed.